Ghulam Murtaza vs Muhammad Rafique, etc

JUDGM ENT

M AZHAR ALAM KHAN M IANKHEL, J. Through instant direct Appeal under Article 185(2) of the Constitution of the Islamic Republic of Pakistan, 1973, the Plaintiff/Appellant ('Appellant') being pre-emptor, has questioned the impugned Judgment dated 15th February. 2021 whereby the learned Judge in Chambers of the Lahore High Court Lahore, allowed the Civil Revision filed by the vendee/Defendant/ Respondents ('Respondents') and set aside the concurrent findings of the Courts below and thereby had dismissed the pre-emption suit of the Appellant.

Learned counsel for the parties were heard and record of the case was perused.

2. Perusal of the record reveals that the only question requiring consideration by this Court is as to whether the Talabs as allegedly performed by the Appellant are within the ambit of section 13 of the Punjab Pre-emption Act, 1991 and the law laid down by this Court. The Appellant to exercise his right of pre-emption had filed a suit for possession through pre-emption against a sale mutation bearing No. 4458 attested on 28th February 2004. After recording of evidence pro and contra the suit of the Appellant was decreed by die civil Judge. Piplan District Mianwali vide his Judgment and Decree dated, 28th April, 2009 and Appeal of the Respondents against the same was dismissed by the Additional District Judge, Piplan District Mianwali, vide his Judgment dated 14th July, 2011 and the Decree in favour of the Appellant-granted by the Trial Court was up-held Both the Courts after going through the pleadings of the parties and appraisal of the evidence led by both the parties. had come to the conclusion that the Plaint of the Appellant contains the requisite details of performance of 'Talabs' and the evidence led by the Appellant to this effect is strictly in accordance with the pleadings and the law. The Respondents though denied the performance of `Talabs' but had bitterly failed to counter and rebut the evidence led by the Appellant. The Appellate Court, while dismissing the Appeal of Respondents up-held the Judgment and Decree of the Trial Court but the learned Judge in Chambers of the High Court while allowing the Civil Revision tiled by the Respondents, set aside the above said concurrent findings of the Courts below and dismissed the suit of the Appellant.

3. We, after hearing the learned counsel for the parties and going through the available evidence and the record have noted that the details of performance of talb-i-muwathibt have not only been given in the plaint but also have been proved through producing the informer, the witness before whom the said 'Talab' was performed besides the appearing of Appellant 'himself as a witness. The Respondents have bitterly failed to shatter the said-evidence. Similarly, 'for the performance of talb-i-ishhad, the attesting witnesses of the talb-i-ishhad, along With the Appellant have testified in this regard and that evidence too, has not been rebutted. The cross-examination of all the three, the pre-emptor and the two witnesses, further confirms the factum of 'Talabs' for being an explanatory cross-examination and by doing so, the stance of the Appellant has further been authenticated. As far as the fact of delivery of said notices to the Respondents is concerned, the said notices were sent to the Respondents on their given addresses along with acknowledgement due Cards but the same were returned un delivered as the Respondents had refused to accept the same. When the addresses appearing on registered envelopes are the same and has not been denied by the Respondents then it can safely be held that the same were not accepted intentionally for an attempt to hamper and extinguish the right of pre-emption of the Appellant.

The available record confirms that the Appellant, as per requirement of law, had performed his legal obligation. Non-acceptance of registered letters, in the given circumstances, would simply mean that the Respondents knowingly refused to accept the same and their said act in no way can affect the rights of the Appellant. When the postal receipts. AD Cards and the registered envelopes properly addressed containing the notices of talb-i-ishhad; present on file and tendered in evidence in the Court are there then this would amount to sufficient compliance of the law. In absence of any rebuttal by the Respondents, would lead the Court to believe that non-acceptance of said notices was intentional and based on mala fide. The learned counsel for the Respondents was unable to point out any misreading or non-reading of the material evidence which could have obliged us to concur with the findings of High Court and have a different opinion, from the one arrived at by the Trial Court and the Appellate Court. We after going through the evidence are of the view that it is a case of gross misreading and non-reading of the material evidence available on the record by the learned Judge in Chambers of the High Court. Both the requisite `Talabs' have validly been performed and proved by the Appellant, so acceptance of Revision Petition by the learned Judge in Chambers of the High Court was not only against the law, but was also against the record which is hereby set aside: and the Judgments and Decrees; that of the Trial Court and the Appellate Court are restored resulting in decretal of pre-emption suit of the Appellant. Costs should follow the event.

4. The Appeal is allowed in above terms. Needless to observe, that the deeming clause regarding deposit of pre-emption amount in Para-19 of the Trial Court Judgment will hold the field.